Plaintiff
Ashley Furniture Industries, Inc. alleges that defendants,
vertically-integrated manufacturers of containerboard
products, conspired to restrict output and raise prices in
violation of Section 1 of the Sherman Act, 15 U.S.C. §
1. All but a single defendant move to transfer this case to
the District Court for the Northern District of Illinois
pursuant to 28 U.S.C. § 1404(a), asserting that this
lawsuit is substantially related to a class action pending in
that forum, from which the plaintiff here opted-out. (Dkt.
#78.) The other defendant, Georgia-Pacific LLC
(“Georgia-Pacific”), moves to sever and then
transfer plaintiff's claims against it to the District of
Delaware, pointing to a forum selection clause contained in
its terms and conditions for sale. (Dkt. #63.) In response,
plaintiff Ashley Furniture emphasizes its right to file and
have the case decided in its home forum, along with its
addition of specific claims under Wisconsin law and expansion
of the alleged conspiracy period, arguing that each compel
the denial of both motions. For other reasons explained
below, the court will deny defendants' motions.

Plaintiff
Ashley Furniture Industries, Inc. (“Ashley”) is a
Wisconsin corporation with its principal place of business in
Arcadia, Wisconsin. During the period relevant to this
lawsuit, plaintiff purchased containerboard and products made
out of containerboard[2] directly from defendants, all of which
manufacture and sell containerboard and containerboard
products.[3] Plaintiff asserts that venue is proper in
this district because a substantial part of the events giving
rise to its antitrust claims occurred in this district by
virtue of defendants' sales of containerboard to
plaintiff.

More
generally, plaintiff claims that defendants began conspiring
in or around 2004 to restrict production of and to raise
prices for containerboard products. Plaintiff alleges that
defendants were able to carry out this conspiracy and charge
supra-competitive prices through coordination facilitated by
frequent gatherings sponsored by industry trade
organizations. Plaintiff further asserts that the
containerboard industry is vulnerable to collusive behavior,
due to factors including the commoditized nature of
containerboard, inelastic demand for containerboard and the
small number of containerboard manufacturers.

Defendants
identify significant similarities between plaintiff's
allegations in this case and the § 1 class action that
is being actively litigated before Judge Leinenweber in the
Northern District of Illinois, Kleen Products LLC, v.
International Paper, , Case No.
1:10-cv-05711.[4]Kleen Products began as five
putative class actions that were filed in 2010, and then
consolidated upon the plaintiffs' motions into a single
case originally assigned to Judge Shadur and then reassigned
to Judge Leinenweber in 2012. (Defs.' Opening Br. (dkt.
#79) at 3.)

Defendants
represent that there have been more than 60 status hearings
in Kleen Products and that discovery has been
“extensive, ” including “dozens of written
discovery requests, millions of pages of produced documents
(or their electronic equivalents), and more than one hundred
depositions, including at least ten third-party
depositions.” (Id. at 3-4.) Defendants also
indicate that the parties' discovery disputes in
Kleen Products generated seventeen motions to
compel, requiring the Magistrate Judge to “overs[ee]
two days of evidentiary hearings, ” as well as
“conduct[] eleven status hearings and Rule 16
conferences with all parties, and facilitate[] three
additional Rule 16 conferences between the plaintiffs and
specific defendants.” (Id. at 4.) In addition,
defendants point out that Judge Leinenweber granted the
Kleen Products plaintiffs' motion for class
certification, which “spawned seven separate briefs
that total more than 300 pages, ” in a 66-page opinion
on March 26, 2015.[5]Kleen Prods. LLC v. Int'l
Paper, 306 F.R.D. 585, 588 (N.D. Ill. 2015). The Seventh
Circuit affirmed Judge Leinenweber's decision on August
4, 2016. Kleen Prods. LLC v. Int'l Paper Co.,
831 F.3d 919 (7th Cir. 2016).

With
respect to the similarities between this case and Kleen
Products, defendants emphasize in their opening brief
that: (1) much of plaintiff's complaint is identical to
the Kleen Products pleadings, including excerpted
examples of matching language; (2) plaintiff essentially
alleges the same conspiracy period, 2004 to 2010; and (3)
both cases name the same defendants, with the exception of
changes reflecting “certain Defendants' corporate
organization that post-date the class action
complaint.” (Defs.' Opening Br. (dkt. #79) 4-8.)
Defendants acknowledge in their opening brief that plaintiff
Ashley Furniture also asserts claims under Wis.Stat. §
133.14, but argue that the state law claims are largely
immaterial to the transfer analysis, because “the legal
standard is the same under either statute, ” while
acknowledging that “the Wisconsin statute may in some
circumstances permit certain forms of relief not available
under the Sherman Act.” (Id. at 8.)

Plaintiff
filed a second amended complaint before the deadline
established in the court's pretrial conference order to
file amended pleadings without leave, and then filed a brief
in opposition to defendants' transfer motion. The second
amended complaint added several paragraphs of
“post-2010” allegations suggesting that
defendants' conspiracy lasted into 2013. While Ashley
Furniture concedes in its opposition brief that “the
plaintiffs in Kleen Products . . . assert a
substantially similar federal antitrust claim against
essentially the same defendants, ” plaintiff argues
this case is different from Kleen Products “in
two significant ways.” (Pl.'s Opp'n Br. (dkt.
#96) at 3.) First, plaintiff alleges claims under Wisconsin
law, and second, plaintiff alleges a longer conspiracy
period.

For its
part, defendant Georgia-Pacific moves to sever
plaintiff's claims against it under Federal Rule of
Procedure 21, and then moves to transfer the severed action
to the District Court for the District of Delaware to
vindicate the forum selection clause included in its terms
and conditions attached to the sale of its containerboard
products. Specifically, that clause states that “the
courts of Delaware shall have exclusive jurisdiction.”
(Decl. of Mary K. McLemore Ex. C (dkt. #75-3).) Plaintiff
does not contest the validity of the forum selection clause,
but rather argues that Georgia-Pacific's insistence that
the forum selection provision significantly outweighs other
factors typically considered regarding transfer is overblown,
especially considering that plaintiff alleges a conspiracy
involving Georgia-Pacific and the other defendants. The other
defendants oppose Georgia-Pacific's motion on grounds
similar to those raised in support of their transfer motion,
namely that transfer of the entire action to the Northern
District of Illinois would best serve judicial economy.

OPINION

I.
Georgia-Pacific's Motion

Because
the parties agree that § 1404(a) requires transfer of an
action as a whole, see Paduano v. Express Scripts,
Inc., 55 F.Supp.3d 400, 431 (E.D.N.Y. 2014), the court
will first decide whether severance and transfer of
plaintiff's claims against defendant Georgia-Pacific is
warranted before addressing the remaining defendants'
motion. Federal Rule of Civil Procedure 21 extends broad
discretion to district courts to “sever any claim
against a party.” See Rice v. Sunrise Exp.,
Inc., 209 F.3d 1008, 1016 (7th Cir. 2000). When a
party's motion to sever and transfer is principally based
on a forum selection clause, as is Georgia Pacific's,
courts have merged the relevant analyses under Rule 21 and 28
U.S.C. § 1404(a). See Paduano, 55 F.Supp.3d at
431-32 (“In exercising that discretion [whether to
grant a Rule 21 severance motion], courts typically consider
the same general factors elucidating the § 1404(a)
analysis. In other words, if the Court were to conclude that
the pertinent factors render transfer appropriate under
§ 1404(a), then severance, too, would be proper.”)
(brackets omitted) (internal quotation marks and citations
omitted) (quoting Valspar Corp. v. E.I. DuPont de Nemours
& Co., 15 F.Supp.3d 928 (D. Minn. 2014)); see
also Monje v. Spin Master Inc., No. CV-09-1713-PHX-GMS,
2013 WL 6498073, at *4 (D. Ariz. Dec. 11, 2013)
(“Severance is a necessary precursor to . . . transfer,
and it is justified by the same reasoning[.]”);
Atlantic Marine Contsr. Co. v. U.S. Dist. Ct. for the W.
Dist. of Tex., 571 U.S. ___, 134 S.Ct. 568, 579 (2013)
(holding that motions to transfer to another federal court
pursuant to a forum selection provision are governed by
§ 1404(a)).

“For
the convenience of the parties and witnesses [and] in the
interest of justice, ” § 1404(a) provides that
“a district court may transfer any civil action to any
other district or division where it might have been brought
or to any district or division to which all parties have
consented.” Courts deciding a § 1404(a) transfer
motion, therefore, typically “must evaluate both the
convenience of the parties and various public-interest
considerations, ” ultimately deciding “whether,
on balance, a transfer would serve the convenience of the
parties and witnesses and otherwise promote the interest of
justice.” Atlantic Marine, 134 S.Ct. at 581
(internal quotation marks and citation omitted). When the
transfer motion is based on a valid forum selection clause
between the parties, this traditional § 1404(a) analysis
is altered in three ways: (1) the plaintiff's choice of
forum deserves no weight; (2) the parties' private
interests are immaterial; and (3) the court should not weigh
the transferee court's familiarity with the law dictated
by the transferor court's choice of law rules, since
those rules would not follow along with a transfer.
Id. at 581-82. Consequently, the Supreme Court
explained in Atlantic Marine that “[w]hen the
parties have agreed to a valid forum-selection clause, a
district court should ordinarily transfer the case to the
forum specified in that clause. Only under extraordinary
circumstances unrelated to the convenience of the parties
should a § 1404(a) motion be denied.” Id.
at 581.

The
forum selection provision in the terms and conditions
attached to sales of Georgia-Pacific's corrugated
products states as follows:

These Terms and Conditions of Sale shall be governed by the
laws of the State of Delaware, USA, and the courts of
Delaware shall have exclusive jurisdiction without reference
to the choice of law, conflicts of law, or principles of any
other state or county which might otherwise be applied.

(Def.'s Opening Br. (dkt. #73) at 3 (quoting Decl. of
Mary K. McLemore Ex. C (dkt. #75-3).) Plaintiff does not
contest the validity of this forum selection provision, but
rather argues that the force of the Supreme Court's
“extraordinary circumstances” requirement is
satisfied here, because unlike Atlantic Marine, this
case involves allegations of a multi-defendant conspiracy. In
support, plaintiff cites several other cases in which
district courts denied a single defendant's motion to
sever and transfer where multiple other defendants were
facing the same claims.

Raising
the same concerns, the other defendants filed their own brief
in opposition to Georgia-Pacific's motion, [6] echoing
plaintiff's argument that “Atlantic Marine
says nothing about forum-selection clauses in a case
like this one, where multiple defendants who did not
‘agree' to the clause oppose transfer to the
specified forum.” (Defs.' Opp'n Br. (dkt. #89)
at 2 (emphasis in original).) Instead, defendants argue this
court should apply the same factors that other courts have
found important in deciding Rule 21 motions: “(1)
whether the claims arise out of the same transaction or
occurrence; (2) whether the claims present some common
questions of law or fact; (3) whether settlement of the
claims or judicial economy would be facilitated; (4) whether
prejudice would be avoided if severance were granted; and (5)
whether different witnesses and documentary proof are
required for the separate claims.” In re High
Fructose Corn Syrup Antitrust Litig., 293 F.Supp.2d 854,
862 (C.D. Ill. 2003). This court agrees, finding that all of
these factors militate against severance, most of them
strongly so.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Georgia-Pacific&#39;s
reply underscores that the parties&#39; central dispute
centers around whether the Supreme Court&#39;s decision in
Atlantic Marine dictates transfer. While
Atlantic Marine &ldquo;did a lot to clear up the law
of forum selection, &rdquo; commenters have noted that the
Supreme Court left important questions unanswered, including
&ldquo;[i]f the [forum selection] clause applies to only some
parties or claims but not others, how should the court review
a transfer motion?&rdquo; Linda S. Mullenix, Gaming the
System: ProtectingConsumers from Unconscionable
Contractual Forum-Selection and Arbitration Clauses, 66
Hastings ...

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